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Property Damage

One type of property damage that may occur is loosely titled "nuisance." The theory of nuisance law differs substantially from most other personal injury theories in that the focus is on the interests of the plaintiff, rather than the conduct of the defendant. Nuisance law is divided into two categories: private and public. A private nuisance is defined as a thing or activity that substantially and unreasonably interferes with the possessor's use and enjoyment of his or her property. In some cases, this interference may be a physical interference that is damaging to the property, such as the destruction of crops or pollution of water. The interference may also be more ethereal and affect the plaintiff's comfort or convenience, without doing actual physical harm to the property itself. However, if the interference affects the plaintiff only personally, a valid cause of action will not lie. The interference must be with the use and enjoyment of the land.

A public nuisance, on the other hand, is an action or omission that obstructs or causes inconvenience or damage to the public in the exercise of rights common to all. Examples of a public nuisance include the harboring of diseased animals, the emission of noxious odors, the practicing of a profession without a license, and countless other activities not directed at any person or limited group in particular, but instead affecting the public as a whole. The remedy for a public nuisance is generally a criminal prosecution for the good of the public.

In addition to nuisance laws, property may also be damaged by intrusion. Individuals who own property have the right to use limited self-help in order to protect that property. However, the right to defend property must be balanced in all cases against the right of individuals to enjoy bodily integrity. The scale rarely tips in favor of property over bodily rights, given the higher social value placed on human life when compared to property. Nonetheless, individuals are entitled to invoke some self-help measures in defending property.

An owner or possessor of property is entitled to use reasonable force to remove a person or object off the property or to prevent a person or object from entering the property. This right is applicable even in situations in which it would otherwise be considered an intentional tort such as battery, assault, false imprisonment, or trespass to personal property.

In order to justify the valid use of self-help, there must be an actual intrusion on the property or a threat of immediate interference with another's property rights or right of possession. Similarly, in order to preserve the right to bodily integrity, the possessor of the property must first request, except in emergency situations, that the intruding individual desist. If the intruder does not comply with this request, then the possessor may use such reasonable force as is tailored, in that specific circumstance, to be the minimum required to accomplish the goal of removing the party. The threat or use of force calculated to do great bodily damage or cause death is not permitted. If the intruder persists, an increase in force may be justified.

There is a very narrow exception to the prohibition on the use of deadly or excessive force. If the threat of intrusion is coupled with a threat of personal safety or if the intruder is committing a forcible felony, then self-defense, even to the point of causing death, may be justified. The use of deadly force in self-defense is not justified if the only thing at risk is property, however.

Possessors of property are not entitled to do, by other means, that which they cannot do themselves in defense of their homes. Therefore, the use of dangerous booby traps or the use of vicious animals is at one's own peril.

Like a possessor of land, a possessor of personal property may also make limited use of self-help principles in seeking to retake property that been wrongfully taken away. A person, in using this self-help, must do so in "fresh" or "hot" pursuit of the items. For example, the owner cannot wait for six years after an object has been taken before seeking its return. In that case, the owner must resort to legal remedies to attempt to have the object returned. Under preferable circumstances, a demand for the return must first be made. If the demand is refused, limited force may then be used, in balance with the circumstances at hand.

An owner of land is entitled to the immediate possession of the land, and therefore has the right to enter the land and retake possession of it without being liable for trespass. Such a right applies in cases where the possessor of the land was wrongfully dispossessed. This type of dispossession can occur without a claim of right, under a claim of right but under circumstances of fraud or duress, or as a result of breaking and entering. In these situations, the owner must enter the property promptly after dispossession or after he or she learns or should have learned of the dispossession. A demand that the possession of the property be returned must first be made, unless, under the circumstances of the particular case, it would be useless, dangerous, or counterproductive to do so. If the demand is refused, the owner may use such reasonable force as he or she believes is necessary to gain reentry to the property. Deadly force may not be used.

Worksheet: Nuisance Neighbors

To read and printout a copy of the Worksheet please link below.

Nuisance Neighbors

You can download a free copy of Adobe Acrobat Reader here.

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